In a recent Land and Environment Court decision, JS Architects Pty Ltd v Randwick City Council, the Court clarified how minimum lot size controls should be applied when assessing strata subdivisions.

Background

JS Architects sought development consent for the strata subdivision of an attached dual occupancy at 64 Knowles Avenue, Matraville. The existing land parcel measured 495m², and the proposed lots under the strata subdivision would measure 322m² and 327m².

Randwick City Council refused the application, citing non-compliance with the minimum lot size requirements under the Randwick Local Environmental Plan 2012 (the LEP), prompting the appeal.

The crux of the dispute lay in how minimum lot size requirements under the LEP should be interpreted and applied to strata subdivisions.

The Council’s Approach: Minimum Lot Size Misinterpreted

Council’s refusal was rooted in its interpretation of clauses 4.1C and 4.1A of the LEP. Specifically:

1. Clause 4.1C – this clause requires a minimum lot size of 550m² for dual occupancies in the R2 Low-Density Residential zone. The Council argued that since the land parcel was only 495m², it failed to meet this requirement.
2. Clause 4.1A (3) & (4) – the Council also referenced clause 4.1A, which governs strata subdivisions.

The Council’s approach incorrectly treated the minimum land area for dual occupancies (clause 4.1C) as applicable to strata subdivisions, even though clause 4.1A provides specific guidance for these cases. In other words, it misapplied the minimum lot size test by conflating the total land area requirement for a subdivision with the lot sizes resulting from a strata subdivision.

Applying the Correct Test

JS Architects argued that the correct clause for assessing the proposal was clause 4.1A(4) of the LEP. This provision explicitly governs strata subdivisions and sets a minimum lot size of 275m² for each resulting strata lot. Under this standard the proposed strata lots of 322m² and 327m² met the minimum size requirement.

Furthermore, with respect to clause 4.1C, JS Architects emphasised that the dual occupancy itself had already been approved under earlier development consent, and the current application was limited to the subdivision of the land under a strata scheme.

The Court agreed with this approach.

Key Takeaways

1. Strata Subdivision vs. Land Subdivision – the Court distinguished between the minimum lot size for land subdivisions under clause 4.1C and the minimum lot size for strata subdivisions under clause 4.1A(4). The latter governs the division of existing dual occupancies into strata lots and explicitly sets the threshold at 275m² per lot.
2. Purpose and objective of clause 4.1A – clause 4.1A(1) seeks to ensure that subdivisions do not create additional dwelling entitlements or fragment land inappropriately. Since the dual occupancy was already approved and constructed, the strata subdivision did not contravene this objective.
3. Compliance with clause 4.1A(4) – the Court confirmed that the proposed lots exceeded the 275m² minimum requirement and so complied with the control.
4. Clarification on lot size calculation – the Court emphasised that strata subdivision lot sizes are measured based on floor plans rather than the overall land area of the parent parcel.

By distinguishing between land and strata subdivisions, the Court provided clarity on how minimum lot size requirements should be interpreted under LEPs. This case reinforces the importance of understanding the nuances of local planning instruments.

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You can read the full decision below.